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It's a difficult time to be someone injured through medical malpractice or products liability.

A recent article in The New York Times talked about how a number of doctors working for Johnson & Johnson on the DePuy hip replacement saw something was wrong very early on, long before the recall of this hip. The idea of doctors remaining quiet when they could be helpful is upsetting.

Unfortunately, it is understandable that they remain quiet. Most doctors won't say anything because it's not in their interest to do so, as their livelihood is tied up with using and promoting this hip. When you have inside information about how poorly the hip is performing, but want to fulfill your ethical obligation under the Hippocratic oath, talking about the problems with this hip is the equivalent of shooting yourself in the foot, career-wise.

Similarly, nobody likes to talk about medical malpractice, or even acknowledge that it happens – making it difficult to implement improvements in the health care industry. Serious medical malpractice issues are rarely acknowledged and will usually only become known if an attorney is contacted. Even when things are readily apparent and there's no denying the liability of the doctor, it is extremely rare that the profession disciplines itself properly.

Being a victim of medical malpractice is bad enough, but it is also difficult to do anything about it. Plaintiffs in medical malpractice cases always have a difficult time finding doctors to be expert witnesses for them. By testifying against another doctor in the same geographical area, that doctor can create problems for himself. For that reason, many experts come from out of state or a university setting. That way there's no daily interaction with those whom they testify against.

Doctors have an instinctual response: “How can a doctor testify against another doctor?” When professional associations of orthopedic surgeons – organizations that confer board certification status upon qualified orthopedists – learn that one of their own has testified for a plaintiff in a lawsuit, they will obtain the transcript for that lawsuit. They scrutinize it looking for any opportunity to find fault with the expert's testimony and characterize it as misleading. In many instances they have been successful in having orthopedists who have testified for plaintiffs removed from their associations, as well as revoking their board certification and hospital privileges in some cases.

On the same theme, there is a group run by doctors whose slogan is “Making healthcare safe for doctors”. They gather information about physicians who testify for plaintiffs and do their best to make professional life difficult for them. They take steps to hurt their reputations while operating under the guise of “protecting the medical community.” And they act like a vigilante mob, with little regard for the professional lives they derail with their agenda.

And to add to the difficulties confronting victims of medical malpractice or products liability, there is a well-financed, national publicity campaign that attempts to portray such victims, and the lawyers who represent them, as fakes who are out to game the court system into showering them with unjustifiable cash awards. This is tort “reform.”

Tort Reform

Despite the attractive name, tort reform is little more than a mass public relations effort funded by the largest medical device manufacturers, cigarette manufacturers, big pharma, big medicine and companies that manufacture products that are known to cause injury — particularly if there are problems in the production of the product.

The whole idea is to insulate themselves from liability and accountability as much as possible by smearing trial lawyers — making them seem like opportunistic parasites who file “frivolous lawsuits” and seek “jackpot justice” – in other words, unjustified awards.

Lastly, I'd like to address one of the most steadfast entities that support tort “reform”– the various Chambers of Commerce.

The U.S. Chamber of Commerce is not a unit of the government. It's not out there to make sure everyone gets a fair shot at setting up their business. In fact, it's essentially a front for established businesses who want to continue their commerce, unimpeded by things such as the rights of folks who are injured by them.

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About the Author

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

• $250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

• $200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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